DELAROSA v. Broadway Crescent Realty, Inc., et al., respondents. (2009)

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), entered October 24, 2007, as granted that branch of the motion of the defendants Broadway Crescent Realty, Inc., and M & N Management Corp. which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendants Broadway Crescent Realty, Inc., and M & N Management Corp. which was for summary judgment dismissing the complaint insofar as asserted against them is denied.

On January 31, 2005, the plaintiff was allegedly injured when, while walking on a sidewalk owned, controlled, and maintained by the defendants Broadway Crescent Realty, Inc., and M & N Management Corp. (hereinafter together the defendants), she tripped and fell due to a height differential between two concrete slabs.   Contending that the defective condition that purportedly caused the plaintiff's accident was too trivial to be actionable, the defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them, and the Supreme Court granted that branch of the defendants' motion.   We reverse the order insofar as appealed from.

 Generally, the issue of whether a dangerous or defective condition exists on real property depends on the particular facts of each case, and is properly a question of fact for the trier of fact (see Trincere v. County of Suffolk, 90 N.Y.2d 976, 977, 665 N.Y.S.2d 615, 688 N.E.2d 489).   However, a property owner may not be held liable for trivial defects, not constituting a trap or nuisance, over which a pedestrian might merely stumble, stub his or her toes, or trip (see Taussig v. Luxury Cars of Smithtown, Inc., 31 A.D.3d 533, 533-534, 818 N.Y.S.2d 593).   In determining whether a defective condition is trivial as a matter of law, a court must examine the facts presented, including the width, depth, elevation, irregularity, and appearance of the condition, along with the time, place, and circumstances of the injury (see Trincere v. County of Suffolk, 90 N.Y.2d at 978, 665 N.Y.S.2d 615, 688 N.E.2d 489).   There is no “minimal dimension test” or “per se rule” that the condition must be of a certain height or depth in order to be actionable (Trincere v. County of Suffolk, 90 N.Y.2d at 977, 665 N.Y.S.2d 615, 688 N.E.2d 489).

 Here, the defendants failed to make a prima facie showing that the allegedly defective condition at issue was trivial and, thus, not actionable.   The evidence submitted in support of the motion, which included the plaintiff's description of the condition at her deposition, as well as the affidavit of an expert who inspected and photographed the accident site over two years after the accident, failed to demonstrate that the condition was trivial as a matter of law (see Hahn v. Wilhelm, 54 A.D.3d 896, 898-899, 865 N.Y.S.2d 240;  Boxer v. Metropolitan Transp. Auth., 52 A.D.3d 447, 448, 859 N.Y.S.2d 709;  Portanova v. Kantlis, 39 A.D.3d 731, 732, 833 N.Y.S.2d 652).   Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law, the Supreme Court should have denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them, regardless of the sufficiency of the plaintiff's opposition papers (see Shalamayeva v. Park 83rd St. Corp., 32 A.D.3d 387, 388, 820 N.Y.S.2d 607).